Citation Nr: 0809904
Decision Date: 03/25/08 Archive Date: 04/09/08
DOCKET NO. 04-38 623 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Lincoln,
Nebraska
THE ISSUES
1. Entitlement to service connection for the cause of the
veteran's death.
2. Entitlement to dependency and indemnity compensation
(DIC) benefits pursuant to 38 U.S.C.A. § 1318.
REPRESENTATION
Appellant represented by: Peter J. Meadows, Attorney at
Law
ATTORNEY FOR THE BOARD
Hallie E. Brokowsky
INTRODUCTION
The veteran served on active duty from May 1944 to March
1946. He died on April [redacted], 2000. The appellant is his
widow.
These matters come before the Board of Veterans' Appeals (BVA
or Board) on appeal from a January 2002 Decision Review
Officer's decision, and a September 2003 rating decision, of
the Department of Veterans Affairs (VA) Regional Office (RO)
in Lincoln, Nebraska.
The Board issued a decision in July 2005, which reopened and
denied the appellant's claim for service connection for the
cause of the veteran's death, as well as denied her claim of
entitlement to DIC benefits under 38 U.S.C.A. § 1318.
She appealed to the U.S. Court of Appeals for Veterans Claims
(Court).
In March 2007, her representative and VA's Office of General
Counsel - representing the Secretary of VA, filed a
joint motion requesting that the Court vacate the July 2005
Board's decision to deny the appellant's claim and remand the
case for readjudication in compliance with directives
specified. The Court issued an Order in March 2007, granting
the joint motion and returned the case to the Board.
In the appellant's October 2004 VA Form 9 she requested a
hearing before a Veterans Law Judge to be held in Washington,
DC. The hearing was scheduled for February 15, 2005. In a
signed statement dated January 27, 2005, the appellant
indicated that she desired to cancel her personal hearing.
As such, the request is deemed withdrawn. See 38 C.F.R.
§ 20.702(e)
FINDINGS OF FACT
1. The veteran died on April [redacted], 2000; the death certificate
lists the immediate cause of death as cardiac arrest, due to
or the consequence of pneumonia, and head and neck cancer.
Chronic obstructive pulmonary disease (COPD) was listed as
another significant condition contributing to death but not
related thereto. Tobacco use was noted to have contributed
to the veteran's death.
2. At the time of the veteran's death, service connection
had been established for PTSD rated as 70 percent disabling
from January 1999 and an appendectomy scar rated as
noncompensable from March 1946. A total rating for
compensation purposes based on individual unemployability had
been awarded effective from January 1999.
3. The competent evidence does not establish that a service-
connected disability was either the principal or a
contributory cause of the veteran's death.
4. The competent evidence does not demonstrate that the
veteran's service-connected PTSD caused him to use tobacco
products after service.
5. The veteran was not in receipt of, or entitled to
receive, compensation for any service-connected disability
that was rated totally disabling for a period of at least
five years from the date of his discharge from active duty.
6. At the time of his death, the veteran was not in receipt
of, or entitled to receive, compensation for any service-
connected disability that was rated totally disabling for a
period of 10 years immediately preceding his death.
CONCLUSIONS OF LAW
1. The criteria for service connection for the cause of the
veteran's death have not been met. §§ 1101, 1110, 1112, 1113,
1131, 1137, 1310, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R.
§§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.312 (2007);
VAOPGCPREC 6-2003 (October 28, 2003).
2. The criteria for entitlement to Dependency and Indemnity
Compensation benefits pursuant to 38 U.S.C.A. § 1318 have not
been met. 38 U.S.C.A. § 1318, 5103, 5103A, 5107(b) (West
2002); 38 C.F.R. §§ 3.22, 3.102, 3.159 (2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Veterans Claims Assistance Act of 2000
The Veterans Claims Assistance Act of 2000 (VCAA) describes
VA's duty to notify and assist claimants in substantiating a
claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007).
Notice
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his or her representative, if any, of any
information, and any medical or lay evidence, that is
necessary to substantiate the claim. 38 U.S.C.A. § 5103(a)
(West 2002); 38 C.F.R. § 3.159(b) (2006); Quartuccio v.
Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must
inform the claimant of any information and evidence not of
record (1) that is necessary to substantiate the claim; (2)
that VA will seek to provide; (3) that the claimant is
expected to provide; and (4) must ask the claimant to provide
any evidence in her or his possession that pertains to the
claim in accordance with 38 C.F.R. § 3.159(b)(1). VCAA
notice should be provided to a claimant before the initial
unfavorable agency of original jurisdiction (AOJ) decision on
a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see
also Mayfield v. Nicholson, 19 Vet. App. 103 (2005); rev'd on
other grounds, 444 F.3d 1328 (Fed. Cir. 2006).
On March 3, 2006, the United States Court of Appeals for
Veterans Claims (Court) issued its decision in the
consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet.
App. 473 (2006). The Court in Dingess/Hartman holds that the
VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R.
§ 3.159(b) apply to all five elements of a "service
connection" claim. As previously defined by the courts,
those five elements include: (1) veteran status; (2)
existence of a disability; (3) a connection between the
veteran's service and the disability; (4) degree of
disability; and (5) effective date of the disability. Upon
receipt of an application for "service connection,"
therefore, the Department of Veterans Affairs (VA) is
required to review the information and the evidence presented
with the claim and to provide the claimant with notice of
what information and evidence not previously provided, if
any, will assist in substantiating or is necessary to
substantiate the elements of the claim as reasonably
contemplated by the application. This includes notice that a
disability rating and an effective date for the award of
benefits will be assigned if service connection is awarded.
In the present case, January 2001, July 2003 and December
2003 letters from the agency of original jurisdiction (AOJ)
to the appellant informed her of what evidence was required
to substantiate the claims of entitlement to service
connection of the cause of the veteran's death and
entitlement to DIC under the provisions of 38 U.S.C.A. §
1318. These letters also informed her of her and VA's
respective duties for obtaining evidence, as well as
requested that the appellant submit any additional evidence
in her possession pertaining to her claims.
The VCAA notice letters failed to discuss the law pertaining
to the assignment of an effective date in compliance with
Dingess/Hartman. The Board finds that this omission was not
prejudicial because the preponderance of the evidence is
against the claims and no effective date will be assigned.
See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the
Board addresses a question that has not been addressed by the
agency of original jurisdiction, i.e., the RO, the Board must
consider whether the veteran has been prejudiced thereby).
See also Soyini v. Derwinski, 1 Vet. App. 540 (1991) (a
remand is inappropriate where there is no possibility of any
benefit flowing to the veteran). .
In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the U.S.
Court of Appeals for Veterans Claims held, in part, that a
VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be
provided to a claimant before the initial unfavorable agency
of original jurisdiction (AOJ) decision on a claim for VA
benefits. The appellant received VCAA notice letters prior
to the RO's adjudication of her claims and the issuance of
the April 2004 rating decision. As such, there was no defect
with respect to the timing of the VCAA notice for these
claims.
The content of the notice provided to the appellant fully
complied with the requirements of 38 U.S.C.A. § 5103(a) and
38 C.F.R. § 3.159(b) regarding VA's duty to notify. The
appellant been provided with every opportunity to submit
evidence and argument in support of her claims and to respond
to VA notice. Further, the Board finds that the purpose
behind the notice requirement has been satisfied because the
appellant has been afforded a meaningful opportunity to
participate effectively in the processing of her claims. For
these reasons, it is not prejudicial to the appellant for the
Board to proceed to finally decide this appeal.
Duty to Assist
With regard to the duty to assist, the claims file contains
the veteran's service medical records and reports of private
and VA post-service treatment, as well as several medical
opinions. Additionally, the claims file contains the
appellant's own statements in support of her claims. The
Board has carefully reviewed such statements and concludes
that she has not identified further evidence not already of
record. The Board has also perused the medical records for
references to additional treatment reports not of record, but
has found nothing to suggest that there is any outstanding
evidence with respect to the appellant's claims.
Based on the foregoing, the Board finds that all relevant
facts have been properly and sufficiently developed in this
appeal and no further development is required to comply with
the duty to assist the appellant in developing the facts
pertinent to her claims. Essentially, all available evidence
that could substantiate the claims has been obtained. There
is no indication in the file that there are additional
relevant records that have not yet been obtained.
Legal Criteria
Service Connection for the Cause of the Veteran's Death
According to VA law and regulation, service connection may be
granted for disability resulting from a disease or injury
incurred or aggravated during active service. See
38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2007).
Service connection also is permissible for any disease
diagnosed after discharge, when all the evidence, including
that pertinent to service, establishes the disease was
incurred in service. 38 C.F.R. § 3.303(d).
Certain chronic conditions will be presumed to have been
incurred or aggravated in service if manifested to a
compensable degree within one year after service.
38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.
This presumption, however, is rebuttable by probative
evidence to the contrary.
The death of a veteran will be considered as having been due
to a service-connected disability when the evidence
establishes that such disability was either the principal or
a contributory cause of death. See 38 U.S.C.A. § 1310;
38 C.F.R. § 3.312(a). For a service-connected disability to
be considered the primary cause of death, it must singly, or
with some other condition, be the immediate or underlying
cause, or be etiologically related thereto. See 38 C.F.R.
§ 3.312(b). In determining whether a service-connected
disability contributed to death, it must be shown that it
contributed substantially or materially, that it combined to
cause death, or that it aided or lent assistance to the
production of death. See 38 C.F.R. § 3.312(c)(1).
Medical evidence is required to establish a causal connection
between service or a disability of service origin and the
veteran's death. See Van Slack v. Brown, 5 Vet. App. 499,
502 (1993).
Service-connected diseases or injuries involving active
processes affecting vital organs receive careful
consideration as a contributory cause of death, the primary
cause being unrelated, from the viewpoint of whether there
were resulting debilitating effects and general impairment of
health to an extent that would render the person materially
less capable of resisting the effects of other disease or
injury that primarily caused death. See 38 C.F.R.
§ 3.312(c)(3). There are primary causes of death, which by
their very nature are so overwhelming that eventual death can
be anticipated irrespective of coexisting conditions, but,
even in such cases, there is for consideration whether there
may be a reasonable basis for holding that a service-
connected condition was of such severity as to have a
material influence in accelerating death. See 38 C.F.R.
§ 3.312(c)(4).
DIC Benefits Pursuant to 38 U.S.C.A. § 1318
Under 38 U.S.C.A. § 1318, VA death benefits may be paid to a
deceased veteran's surviving spouse in the same manner as if
the veteran's death is service-connected, even though the
veteran died of nonservice-connected causes, if the veteran's
death was not the result of his or her own willful misconduct
and at the time of death, the veteran was receiving, or was
entitled to receive, compensation for a
service-connected disability that was rated by VA as totally
disabling for a continuous period of at least 10 years
immediately preceding death; or was rated totally disabling
continuously since the veteran's release from active duty,
and for a period of not less than five years immediately
preceding death; or was rated by VA as totally disabling for
a continuous period of not less than one year immediately
preceding death if the veteran was a former prisoner of war
who died after September 30, 1999. 38 U.S.C.A. § 1318; 38
C.F.R. § 3.22.
Factual Background
VA examinations in September 1946, November 1947, October
1949, October 1950, November 1954, November 1956, and January
1959 were negative for heart disease, lung disease, or
cancer. October 1947 and March 1952 VA hospitalization
reports were similarly negative.
The evidence of record shows that the veteran suffered a mild
myocardial infarction in 1988; this fact was noted in a
February 1996 VA heart examination report, in which the
veteran was diagnosed with coronary artery disease (CAD) with
status post myocardial infarction and functional Class I
angina by history. A March 1996 VA medical memorandum found
that the veteran's CAD was not attributable to nervous
factors. The examiner specifically opined that the 1988 mild
myocardial infarction was not the result of PTSD/anxiety
disorder and there were no neurological problems found that
could be related to PTSD/anxiety disorder.
In addition, the evidence of record also reveals a diagnosis
of COPD, as indicated in February 1996 chest x-rays.
Moreover, the medical evidence also showed treatment for head
and neck cancer in 2000. That condition was treated by M. K.
Z., M.D., who submitted a statement dated in June 2000
asserting that the veteran's death was not related to his
cancer, but rather was due to his continued weakened medical
condition complicated by PTSD and the deterioration of his
cardiopulmonary system. In correspondence dated in August
2000, Dr. Z opined that it was at least possible that the
disability causing or contributing to the veteran's death was
PTSD, which began or worsened during his military service.
A July 2001 VA examination report indicated that the veteran
had been admitted to the hospital with pneumonia, which
resulted in respiratory arrest. Cardiac arrest was noted
subsequent to the respiratory failure as a result of
pneumonia. The examiner opined that cardiac arrest was not
related to PTSD and further, that the veteran had severe
hypoxia as a result of pneumonia, which was the terminal
event leading to cardiac arrest.
Finally, the veteran's death certificate reveals that the
veteran died on April [redacted], 2000. The immediate cause of death
was cardiac arrest due to pneumonia and head and neck cancer.
COPD was listed as a significant condition contributing to
death but not related to it. The death certificate also
indicates that tobacco use contributed to the veteran's
death.
A December 2003 letter written by L. D. B., M.D. opined that
the veteran's service-connected PTSD led to a smoking habit,
which in turn contributed to his death. Additionally, a
January 2004 VA medical opinion considered and rejected the
possibility of a relationship between the veteran's PTSD and
his nicotine addiction. In a statement dated in July 2007, a
private physician opined that the veteran began smoking, and
became addicted to smoking, as a result of his service-
connected PTSD. The opining physician indicated that he had
reviewed the veteran's "medical and Department of Veterans
Affairs records."
Analysis
Service Connection for the Cause of the Veteran's Death
Based on the relevant evidence of record, the Board finds
that the preponderance of this evidence is against the claim
for service connection for the cause of the veteran's death.
The veteran's service medical records are negative for
evidence that the veteran was treated for a cardiovascular or
respiratory disability during his service, nor did he have
any related complaints during his military service. The
Board also points out that the veteran's separation
examination and related chest x-ray were normal.
See 38 U.S.C.A. §§ 1110, 1131, 1310; 38 C.F.R. §§ 3.303,
3.312. Rather, competent clinical evidence of record
establishes that a cardiac disability, pulmonary disability,
and head and neck cancer were initially demonstrated decades
after service. The Board notes that, in the absence of
demonstration of continuity of symptomatology, the initial
demonstration of disability years after service is too remote
from service to be reasonably related to service. See
Savage, supra (requiring medical evidence of chronicity and
continuity of symptomatology after service). See also
38 C.F.R. §§ 3.307, 3.309. See Maxson v. Gober, 230 F.3d
1330 (Fed. Cir. 2000).
As stated previously, the veteran was service-connected for
PTSD and an appendectomy scar at the time of his death. The
appellant has not alleged, nor demonstrated by competent
evidence that the service-connected scar caused or
contributed substantially to the veteran's death. The Board
acknowledges Dr. Z's August 2000 opinion that it was "at
least possible" that PTSD caused or contributed to the
veteran's death, and that, in a May 2003 communication he
stated that it was "at least as likely as not" that the
PTSD led to the veteran's death. However, Dr. Z's opinions
lack any accompanying rationale and therefore are considered
to be minimally probative. See Madden v. Gober, 125 F.3d
1477, 1481 (1997) (in evaluating the evidence and rendering a
decision on the merits, the Board is required to assess the
credibility and probative value of proffered evidence in the
context of the record as a whole). See also Tirpak v.
Derwinski, 2 Vet. App. 609 (1992) (medical possibilities and
unsupported medical opinions carry negligible probative
weight).
In contrast, a July 2001 VA medical opinion concluded that
that the veteran's fatal cardiac arrest was not related to
PTSD. Moreover, the July 2001 VA opinion offered an
alternative cause of the veteran's death, specifically,
severe hypoxia brought on by his pneumonia. The VA examiner
reviewed the veteran's entire claims folder prior to finding
that it was unlikely that the veteran's fatal cardiac arrest
was not related to his military service. In short, the July
2001 VA examiner's opinion has significant probative weight
since it was based on a review of the complete record,
including the appellant's assertions and the veteran's
medical history. See Elkins v. Brown, 5 Vet. App. 474, 478
(1993).
Based on the foregoing, then, the evidence fails to establish
that the veteran's service-connected PTSD was either the
principal or a contributory cause of death. However, the
appellant also contends that the veteran's service-connected
PTSD led to nicotine dependence, which in turn weakened his
heart and lungs, ultimately causing his death.
With respect to the appellant's contentions with respect to
nicotine dependency, VA issued an implementing regulation 38
C.F.R. § 3.300 in April 2001, reflecting the statutory
provision stating that a disability or death will not be
service connected on the basis that it resulted from injury
or disease attributable to a veteran's use of tobacco
products during service. See 38 U.S.C.A. § 1103; 38 C.F.R. §
3.300 (2007). Service connection, however, is not precluded
where the disability or death resulted from a disease or
injury that is otherwise shown to have been incurred or
aggravated during service. 38 C.F.R. § 3.300. For purposes
of this section, "otherwise shown" means that the disability
or death can be service-connected on some basis other than
the veteran's use of tobacco products during service. 38
C.F.R. § 3.300.
In VAOGCPREC 6-2003 (October 28, 2003), the General Counsel
determined that neither 38 U.S.C. § 1103(a) nor VA's
implementing regulations at 38 C.F.R.
§ 3.300 bar a finding of secondary service connection for a
disability related to the veteran's use of tobacco products
after the veteran's service, where that disability is
proximately due to a service-connected disability that is not
service-connected on the basis of being attributable to the
veteran's use of tobacco products during service. The
General Counsel further held that adjudicators must resolve
(1) whether the service-connected disability caused the
veteran to use tobacco products after service; (2) if so,
whether the use of tobacco products as a result of the
service-connected disability was a substantial factor in
causing a secondary disability; and (3) whether the secondary
disability would not have occurred but for the use of tobacco
products caused by the service-connected disability. If
these questions are answered in the affirmative, the
secondary disability may be service-connected. VAOGCPREC 6-
2003 (October 28, 2003).
In the instant case, the appellant filed her claim in
December 2003. Thus, the holdings in VAOPGCPREC 6-2003 are
applicable. However, her claim fails to satisfy the three-
pronged test delineated above. A December 2003 letter from
Dr. B, and a July 2007 letter from G.L.W., M.D., assert that
the veteran's PTSD led to his nicotine addiction. However,
neither physician provides a rationale for this conclusion,
despite a review of he veteran's medical records. See Wood
v. Derwinski, 1 Vet. App. 190, 192 (1991) (the Board is not
required to accept unsubstantiated or ambiguous medical
opinions as to the origin of the veteran's disorder). See
also Reonal v. Brown, 5 Vet. App. 458, 494-95 (1993)
(the presumption of credibility is not found to "arise" or
apply to a statement of a physician based on a factual
premise or history as related by the veteran).
Conversely, a January 2004 VA opinion found that the
veteran's PTSD did not cause him to use tobacco products
after his service. The VA examiner explained that a search
of the relevant medical literature found that there was no
evidence that PTSD causes nicotine dependence, and noted that
psychiatric study found that exposure to traumatic events did
not increase the risk for a substance abuse disorder.
Because the VA opinion is based upon the results of research
in medical journals, it is found to be more probative than
the opinions of Dr. B. and Dr. G.L.W., for which no
explanation was provided. Although the Board may not ignore
medical opinion evidence, greater weight may be placed on one
physician's opinion than another's depending on factors such
as reasoning employed by the physicians and whether or not
and the extent to which they reviewed prior clinical records
and other evidence. See Gabrielson v. Brown, 7 Vet. App. 36,
40 (1994). The January 2004 VA medical opinion has the
proper factual foundation and is not predicated on
unestablished facts or mere allegations. See Owens v.
Brown, 7 Vet. App. 429 (1995); Swann v. Brown, 5 Vet. App.
229, 233 (1993).
In addition, the evidence of record also fails to demonstrate
that the secondary disability (in this case, cardiopulmonary
complications) would not have occurred but for the use of
tobacco products. The Board acknowledges that, as pointed
out in the Joint Motion, the death certificate noted that
tobacco use contributed to the veteran's death. However, as
previously demonstrated, the medical evidence of record
clearly indicates that the veteran's death from cardiac
arrest was due to severe hypoxia as a result of pneumonia, as
confirmed by the July 2001 VA examiner. Further, while a
December 2003 letter written by Dr. B stated that the veteran
expired "due to cancer of the head and neck with metastasis
secondary to his smoking," this conclusion conflicts with a
June 2000 treatment record written by Dr. Z, which indicated
that there was no evidence of recurrent or metastatic
carcinoma following surgery and external radiation therapy.
Again, even if cancer was the cause of death, there is no
evidence to show that such cancer would not have occurred but
for tobacco use.
Therefore, the veteran's tobacco use has not been shown by
competent evidence to be related to his service-connected
disabilities, and, in turn, means that the appellant cannot
link the veteran's death due to cardiac arrest to his service
or a service-connected disability - via his tobacco use.
38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439, 448
(1995). That is to say, the elimination of one relationship
to service, as the supposed precipitant, necessarily also
eliminates all associated residual conditions. See Mercado-
Martinez v. West, 11 Vet. App. 415, 419 (1998) ("In order
for service connection for a particular disability to be
granted, a claimant must establish he or she has that
disability and that there is 'a relationship between the
disability and an injury or disease incurred in service
or some other manifestation of the disability during
service.'" Citing Cuevas v. Principi, 3 Vet. App. 542, 548
(1992)).
In sum, then, the evidence of record contains no probative
finding that the veteran's service-connected PTSD caused his
nicotine addiction. Moreover, the probative evidence does
not conclusively demonstrate that the veteran's smoking
contributed to his cardiac and respiratory problems. The
appellant has so asserted, but she has not been shown to
possess the requisite training or credentials needed to
render a competent opinion as to medical causation. As such,
her lay opinion does not constitute competent medical
evidence and lacks probative value. See Routen v. Brown, 10
Vet. App. 183, 186 (1997), aff'd, 142 F.3d 1434 (Fed. Cir.
1988); YT v. Brown, 9 Vet. App. 195, 201 (1996); Espiritu v.
Derwinski, 2 Vet. App. 492, 494-95 (1992). Finally, even if
it were possible to find that the veteran's smoking did
contribute to his fatal cardiac and respiratory problems,
there is no competent evidence to show that such problems
would not have occurred but for the use of tobacco products.
Therefore, the appellant's claim of entitlement to service
connection for the cause of the veteran's death on the basis
of nicotine use allegedly compelled by his service-connected
PTSD must fail. As the preponderance of the evidence is
against the claim, the benefit of the doubt rule is not
applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski,
1 Vet. App. 49, 54-56 (1990).
DIC Benefits Pursuant to 38 U.S.C.A. § 1318
The appellant also seeks VA dependency and indemnity
compensation benefits (DIC), which may be awarded to a
surviving spouse upon the service-connected death of a
veteran. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.5(a) (2007).
The record here indicates that the veteran was discharged
from active service in March 1946. In a March 1946 rating
decision, service connection was awarded for psychoneurosis,
anxiety type, encephalopathy, and a healed appendectomy scar.
A combined 100 percent rating was assigned from March 1946 to
provide for a period of convalescence.
Throughout the veteran's lifetime his disability rating for
anxiety reaction was reduced as follows: in an October 1946
rating decision, 60 percent disabling from December 1946; in
an October 1949 rating decision, 50 percent disabling from
December 1949 (note: the veteran's disability was
recharacterized as anxiety reaction); in a December 1954
rating decision, 30 percent disabling from February 1955; in
a December 1956 rating decision, 10 percent disabling from
February 1957; and in a February 1959 rating decision, it was
reduced to noncompensable from November 1958.
The noncompensable rating was in effect from November 1958
until 1995, when the veteran sought an increased rating. In
a March 1996 rating decision, the veteran's anxiety reaction
was reclassified as PTSD and a 30 percent evaluation was
assigned, effective November 1995. In a January 1999 rating
decision, the veteran's PTSD disability rating was increased
to 50 percent disabling effective January 1999. In November
1999, the RO increased the veteran's PTSD rating to 70
percent disabling effective January 1999 and awarded
individual unemployability, also effective January 1999.
A 70 percent rating was in effect from January 1999 for PTSD
and a noncompensable rating was in effect from March 1946 for
an appendectomy scar. Individual unemployability became
effective January 1999. His combined schedular rating was 70
percent from January 1999. (See the November 1999 rating
decision).
On April [redacted], 2000, the veteran died from cardiac arrest due
to or as a consequence of pneumonia, due to or a consequence
of head and neck cancer. COPD and tobacco use were listed as
contributing to the veteran's death. During his lifetime,
the veteran did not receive an award of service connection
for any disabilities other than PTSD (previously
characterized as anxiety reaction) and a healed appendectomy
scar, including the terminal disorder.
Based on the above, it is clear that the veteran was not
rated as totally disabling for service-connected disability
for 10 years prior to his death, or continuously since
discharge from service and for at least 5 years immediately
preceding death. Additionally, the veteran was not a former
prisoner of war who died after September 30, 1999. Moreover,
there has been no allegation of clear and unmistakable error
in any rating adjudication during the veteran's lifetime. 38
C.F.R. § 3.22(b). As such, the Board finds that the criteria
set forth under 38 U.S.C.A. § 1318 and 38 C.F.R. § 3.22 have
not been satisfied. Moreover, VA has established that
"hypothetical entitlement" is not a viable basis for
establishing benefits under either 38 U.S.C.A. § 1311(a)(2)
or 38 U.S.C.A. § 1318.
For these reasons, there is no legal basis for entitlement to
DIC under 38 U.S.C.A. § 1318. See Sabonis v. Brown, 6 Vet.
App. 426, 430 (1994). The Board sympathizes with the
appellant's circumstances, but is obligated to decide cases
based on the evidence before it. See Harvey v. Brown, 6 Vet.
App. 416, 425 (1994) (holding that the Board is bound by the
law and is without authority to grant benefits on an
equitable basis).
ORDER
Service connection for the cause of the veteran's death is
denied.
Entitlement to dependency and indemnity compensation (DIC)
benefits pursuant to 38 U.S.C.A. § 1318 (West 2002) is
denied.
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U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs